TMI Blog2021 (8) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... uest under the Scheme which finally was rejected. The appeal before Commissioner (Appeals) has also been within reasonable time. Commissioner (Appeals) himself has held that appellant otherwise has sufficient reason to reach him but beyond the time as prescribed under Section 35(C ) of Central Excise Act. Also, under the statutory mandate of Section 35 of Central Excise Act that Commissioner (Appeals) is not empowered to condone the delay of more than 30 days over and above the period of 60 days from the date of receipt of Order in Original. Apparently the appeal in the present case could not have been filed before the Commissioner (Appeals) within the said period of 90 days. The matter is ordered to be remanded back to the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944. Accordingly, the recovery of duty amount of ₹ 41,01,193/- along with the interest and the proportionate penalty was proposed vide the show cause notice. The proposal was initially confirmed vide Order in Original No. 002/2019-20 dated 31.7.2019. The appeal thereof has been rejected vide the Order under challenge being barred by time. Being aggrieved, the appellant is before this Tribunal. 3. I have heard Shri Ankur Upadhyay, learned Counsel for the Appellant and Shri Ravi Kapoor, learned Authorised Representative for the Department. 4. It is mentioned by the learned Counsel that the appeal filed by them is not barred by time as they were exercising another remedy available to them. The time taken for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief of time exclusion as is claimed by the appellant. It is further submitted that section 35 of Central Excise Act creates statutory mandate upon the Commissioner (Appeals) to not to condone the delay over and above 90 days from the date of receipt of Order-in-Original. In the present case, the Order-in-Original was admittedly announced in July, 2019. However the impugned appeal has been filed in May, 2020. There definitely is a delay of 11 months as has rightly been observed by Commissioner (Appeals) while rejecting the appeal. Hence, there is no illegality in the Order-in-Appeal. The present appeal accordingly is prayed to be dismissed. 6. After hearing the parties and perusing the entire record, I observe and hold as follows: T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another one month subject to discretion of Commissioner (Appeals). I further observe that the scheme got notified on 01.09.2019 i.e. before the period of two months (60 days) with appellant to file appeal before Commissioner (Appeals) expired. The application under said Scheme though has been filed on 04.12.2019 but under the category of arrears i.e. under section 121 C (i) of the Scheme. In the given circumstances, to my opinion, the date of filing the application is not relevant but it is the date when scheme got notified, which is relevant. 7. I further observe that the said request of the appellant got rejected shortly after he applied. The appellant again pleaded for the benefit of the scheme vide another application dated Decemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Scheme talks about amount in arrears (as discussed above) to also be settled. (iii) Appellant availed the said benefit within reasonable time without any inordinate unexplainable delay. (iv) More time has been taken by the department for considering appellant s request under the Scheme which finally was rejected. (v) The appeal before Commissioner (Appeals) has also been within reasonable time. (vi) The Commissioner (Appeals) himself has held that appellant otherwise has sufficient reason to reach him but beyond the time as prescribed under Section 35(C ) of Central Excise Act. 10. In view of the above, I do not see any reason for taking hyper technical approach against the appellant which otherwise will amount to violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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